Have a Seat in CA

From the category of “really, I didn’t know this”: CA regulations require employers to provide their employees “suitable seats when the nature of the work reasonably permits the use of seats.” Does everyone have to have a seat at the table?

In a recent case, a CA court (Meda v. AutoZone) said that suitable seating is a fact-specific assessment since “every workplace is different, and a variety of factors may impact how an employer could ‘provide’ suitable seating at a particular workstation.” A court may consider “the nature of an employee’s job responsibilities, how frequently an employee changes tasks, the physical layout of the workspace, the number of employees sharing a workstation, and the extent to which the location of a seat at or near a workstation may obstruct employee’s tasks or cause congestion … .”

Arbitration is Alive and Well

Recent SOTUS cases have affirmed that arbitration of employment disputes is lawful, despite having come under scrutiny by those that oppose the practice.

For those of you with employees in the Eleventh Circuit (GA, FL, AL), recent case is worth noting. In Lambert v. Signature Healthcare LLC, the Eleventh Circuit Court of Appeals held that the arbitration agreement signed by an employee was not “procedurally unconscionable” and was enforceable. The arbitration agreement covered claims relating to “recruitment, employment, or termination of employment,” claims under the ADA, the FLSA, and “any and all claims under federal, state, and local laws and common law.” Lambert was fired sued Signature in Florida state court under the FMLA, the FLSA, and state law. Signature removed the case to federal court and moved to dismiss and compel arbitration under the FAA. The district court found the arbitration agreement was procedurally unconscionable because it was a “contract of adhesion” and presented on a “take it or leave it” basis. The court also found the arbitration agreement was substantively unconscionable because the handbook reserved Signature’s right to modify the terms of the arbitration agreement unilaterally.

The Eleventh Circuit reversed the order denying Signature’s motion to dismiss and to compel arbitration, concluding that the arbitration agreement was not procedurally unconscionable. The court found that the district court “misapprehended procedural unconscionability under Florida law” when it determined that Lambert lacked a “meaningful choice” when she signed the arbitration agreement and although an arbitration agreement is presented on a take-it-or-leave-it basis “is not dispositive.” The court noted that even when an arbitration agreement is a condition of employment, the circumstances surrounding the execution of the agreement should be explored by the court before concluding it is procedurally unconscionable. The court engaged in an “independent review of the record” and found they could not identify “any additional factors that weigh in favor of procedural unconscionability.” The court concluded Lambert had not shown the arbitration agreement was procedurally unconscionable and, as a result, the court need not consider whether the agreement was substantively unconscionable.

CT Increases Scope of Discrimination Laws

Effective October 1, 2022, CT will expand employer obligations under the Connecticut Fair Employment Practice Act (“CFEPA”). Summary:

  1. “Employer” coverage is reduced to include employing one or more employees (vs. 3 previously).
  2. A “domestic violence victim” is a new protected class (i.e., employers are prohibited from discriminating against individuals based on their status as a domestic violence victim).
  3. Employers must provide a reasonable accommodation, including a reasonable leave of absence, to an employee seeking services related to or attention to injuries caused by domestic violence.
  4. Adds an undue hardship exception to the reasonable accommodation requirement. It also permits employers to request specified documentation to substantiate the requested leave of absence.
  5. Employers must keep confidential all information related to the individual’s status as a domestic violence victim, to the extent permitted by applicable law.

DC Rolls Back Non-Compete Restrictions

Effective November 10th, the following are changes that reduce the breadth of the DC non-compete law:

  1. applies only to employees who either (1) spend at least 50% of their working time in DC, or (b) spend substantial time working in DC and no more than 50% of their working time in another jurisdiction.
  2. exempts “highly compensated employees” receiving at least $150,000 a year.
  3. restricts non-competes to 1 year for highly compensated employees and two years for medical specialists. The amended law creates a presumption that a year or less is enforceable.
  4. exempts from coverage policies that prohibit or restrict employee disclosure, use, sale, or access of the employer’s confidential information.
  5. allow employer policies that prohibit an employee from “[a]ccepting money or a thing of value for performing work” if doing so will “[c]onflict with the employer’s, industry’s, or profession’s established rules regarding conflicts of interest.”

DC Mandatory Training

The mandatory sexual harassment training requirement in DC’s Tipped Wage Workers Fairness Amendment Act is now going effect.

D.C. employers whose workers earn tips as wages (or for who a tip credit is taken) are required to:

  1. Provide mandatory sexual harassment training to their owners/operators and employees;
  2. Submit their compliant sexual harassment policy to the D.C. Office of Human Rights; and
  3. Report the number of sexual harassment complaints made to management in 2020, 2021, 2022, and thereafter.

OFCCP To Release EEO-1 Type 2 Reports

Last week, the Office of Federal Contract Compliance Programs announced that it plans to release Type 2 (which are consolidated for all locations) reports of all federal contractors for the past five years in response to a Freedom of Information Act request. Contractors have 30 days to object directly to the OFCCP regarding the release of their Type 2 reports. The OFCCP says that it will release the Type 2 reports of all contractors who do not object. Contractors have until September 19th to submit an objection.

Written by: Gordon M. Berger, Partner 

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